Rajasthan High Court - Jaipur
Prem Bihari Gupta vs Surendra Kumar Bardia on 10 January, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 2915/2017
Prem Bihari Gupta Son Of Govind Bihari Gupta, R/o House
No.12, Manu Marg, Govind Nagar East, Amer Road, Jaipur.
----Petitioner
Versus
Surendra Kumar Bardiya Son Of Late Sagar Mal Bardia B/c
Mahajan Jain, R/o 20, Bardia Colony, Museum Marg, Jaipur, At
Present 207, Royal Enshine, Statue Circle, Jaipur.
----Respondent
For Petitioner(s) : Mr. Sarfaraj Hyder For Respondent(s) : Mr. Amitabh Jatav HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Order 10/01/2019 Petitioner, his father and wife had issued cheques in favour of complainant-respondent. Five separate complaints were filed.
During typing of complaints, typographical error occurred regarding number and date of cheques.
Admittedly, cheques have been issued from the cheque book of the petitioner. The trial court rejected the prayer of the complainant-respondent by holding that if correction is permitted, same will tantamount to amendment in the complaint. Aggrieved against the same, complainant-respondent filed a revision petition. The revisional court accepted the revision of the complainant-respondent and permitted the complainant to make necessary corrections.
(Downloaded on 05/06/2021 at 08:25:34 PM)(2 of 8) [CRLMP-2915/2017] Admittedly, in the present case typographical error has been corrected. Complainant-respondent has not been permitted to amend the complaint substantially.
To re-enforce the settled legal position that the complaint cannot be amended but typographical error can be corrected by the trial court, I while as a Judge of Punjab and Haryana High Court relying upon the judgment of Rajasthan High Court in Bhim Singh vs. Kan Sineh, 2004 (2) Crl. Court Cases 2323 made a reference to Larger Bench.
A Division Bench of Punjab and Haryana High Court in Avtar Singh vs. Avtar Singh Sidhu, Cr. Misc. No. 45946-M of 2004 and other connected cases being Cr. Misc. Nos. 29443/04, 22104/07, 16400 to 16402 of 2011, 16723/11 and 17502/2011 decided on 4.7.2011 considered case law and thereafter held as under:-
"5. Aggrieved by the order of the trial Court, the accused filed a petition under Section 482 Cr.P.C. which came up for hearing before learned Single Judge. Reliance was placed on judgment of this Court in M/s Kumar Rubber Industries v. Sohan Lal 2002(2) RCR (Criminal) 111 holding that correction of number of cheque went to the root of the matter and in absence of any statutory power of amendment, the trial Court, which had no inherent powers, could not allow such correction. Learned Single Judge while taking the said view distinguished the judgment of the Honble Supreme Court in U.P. Pollution Control Board v. M/s Modi Distillery AIR 1988 SC 1128, allowing amendment by trial Court of name of the accused Company, on the ground that the case related only to mis-description and not to correction of the number of cheque, which will stand on different footing. The said judgment of learned Single Judge has also been followed in subsequent judgment of this Court in V.K. Guvta v. Maniit Kaur 2008(31 RCR (Criminal) 430, wherein reference was made to judgment of the Honble Supreme Court in Major A.S. Gaurava v. S.N. Thakur (Downloaded on 05/06/2021 at 08:25:34 PM) (3 of 8) [CRLMP-2915/2017] (1986) 2 SCC 709 taking a view that the trial Court did not have the inherent power.
6. Learned Single Judge while hearing the said petitions, disagreed with the view taken in M/s Kumar Rubber Industries and V.K. Gupta with the observation that technicalities could not triumph over substantial justice and referred the matter to Division Bench. Learned Single Judge relied upon the following judgments: -
i) Maan Agro Centre v. Eid Parry (India) Ltd. & Anr. 2005 (2) Criminal Court Cases 392 (Bom);
ii) Bhim Singh (Supra);
iii) Abdul Rehman M. Mulgand v. Mohammad Hashan & Anr. 2006 iii) (2) Criminal Court Cases 1092 (Bom);
iv) Kavuri Suwarna Bala Sundaram v. Karmati Poorna Chandra Rao and Another 2004 Cri. LJ 712 (A.P.);
v) Viswanathan v. Ramachandran Nair 1996(2) Civil Court Cases 435 (Ker) and
vi) Nityanand v. Smt. Jamuna Prakash 2002(1) Civil Court Cases 468 (Ker)."
7. Following question has been referred for consideration: -
" Whether in a complaint filed under Section 138 of the Negotiable Instruments Act, 1881, Subordinate Courts can allow complainant to correct a typographical error by way of amendment or not?"
8. We have heard learned counsel for the parties.
9. Learned counsel for the accused-petitioner submitted that the view earlier taken in two Single Bench judgments of this Court in M/s Kumar Rubber Industries and V.K. Gupta was a correct view as the accused was statutorily entitled to notice and cause of action related to the cheque in respect of which notice had been issued. Any change of cheque number will involve setting up of a new cause of action and not mere correction of typographical error and was not at par with correction of a mis- description which has been held by the Honble Supreme Court to be permissible.
10. On the other hand, learned counsel for the complainant submitted that even in absence of inherent power, a typographical mistake or error of mis-description could always be corrected, as rightly held by the trial Court relying upon judgment in Bhim Singh which is also the view taken by Bombay, Andhra Pradesh, Kerala and Karnataka High Courts in judgments mentioned above. No Court is powerless in making a minor correction to advance the interest of justice and to prevent miscarriage of justice. Correction of a cheque number did not involve any prejudice to the accused, as the accused knew the correct number which had been issued.
11. In support of the submission that arithmetical correction is permissible even by a subordinate Court, (Downloaded on 05/06/2021 at 08:25:34 PM) (4 of 8) [CRLMP-2915/2017] learned counsel for the complainant has relied upon the following judgments: -
i) Smt. Sooraj Devi v. Pyare Lal & Anr. AIR 1981 SC 736;
ii) Smt. Shashi Shrivastava v. Jagdishsing Kushwah 2009(1) RCR (Criminal) 201 (M.P.);
iii) Sri Krishna Bhupathi v. Chandana Constructions 2004(2) RCR (Criminal) 562 (Kar);
12. We have considered the rival submissions and are of the view that the subordinate Court is not powerless in making correction of a typographical error. Allowing such a correction does not involve change of cause of action and the complainant could proceed on the same cause of action by correcting the cheque number. (Emphasis Supplied)
13. It is true that in Major A.S.Gauraya, the Honble Supreme Court held that the subordinate court had no inherent power to restore a complaint dismissed for non- prosecution, it cannot be implied that a subordinate Court is powerless even in the matter of correcting an unintended typing or clerical error. Such power exists in everycourt and the Honble Supreme Court in UP Pollution Control Board and Smt. Sooraj Devi, assumed that such power could be exercised by subordinate court. Correction of clerical power is inherent even, without express conferment of inherent power in the Court. Exercise of such power is not prohibited even for subordinate courts. The purpose of such power is to set right a mistake and prevent injustice by unintended mistake. If it is to be held that a subordinate court cannot correct even an accidental mistake, this will result in absurdity not intended by law. There is no principle on which such power can be denied to the subordinate court. In absence of any express prohibition, the Court has to adopt an approach which advances the cause of justice. To err is human is well known. If an accidental arithmetical or typographical mistake takes place, the same has to be allowed to be corrected. (Emphasis Supplied) We may refer to certain observations highlighting the policy of law in allowing correction of a clerical error. Even though the said cases make a reference to inherent power under Section 152 CPC, reference has also been made to common law principles assuming existence of such power in Court even in absence of an express provision,
14. It was held in Samarendra Nath Sinha v. Krishna Kumar Nag, AIR 1967 SC 144:-
"11, Now, it is well-settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention. "Every court," said Bowen, L.J. in Mellor v. Swira, 30 Ch 239, "has inherent power over its own records so long as those records are within its power and that it can set right any mistake in them. An order even when passed and entered (Downloaded on 05/06/2021 at 08:25:34 PM) (5 of 8) [CRLMP-2915/2017] may be amended by the court so as to carry out its intention and express the meaning of the court when the order was made." In Janakirama Iyer v. Nilakanta Iyer, AIR 1962 SC 633, the decree as drawn up in the High Court had used the words "mesne profits" instead of "net profits". In fact the use of the words "mesne profits" came to be made probably because while narrating the facts, those words were inadvertently used in the judgment. This court held that the use of the words "mesne profits" in the context was obviously the result of inadvertence in view of the fact that the decree of the trial court had specifically used the words "net profits" and therefore the decretal order drawn up in the High Court through mistake could be corrected under Sections 151 and 152 of the Code even after the High Court had granted certificate and appeals were admitted in this court before the date of the correction. It is true that under Order 20, Rule 3 of the Code once a judgment is signed by the Judge it cannot be altered or added to but the rule expressly provides that a correction can be made under Section 152. The Rule does not also affect the court's inherent power under Section
151. Under Section 152, clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court either on its own motion or on an application by any of the parties. It is thus manifest that errors arising from an accidental slip can be corrected subsequently not only in a decree drawn up by a ministerial officer of the court but even in a judgment pronounced and signed by the court,"
(emphasis supplied)
15. It was held in Tilak Raj v. Baikunthi Devi, (2010) 12 SCC 585:-
"25. Since the court exists to dispense justice, any mistake which is found to be clerical in nature should be allowed to be rectified by exercising inherent power vested in the court for sub-serving the cause of justice. The principle behind the provision is that no party should suffer due to bona fide mistake. Whatever is intended by the court while passing the order or decree must be properly reflected therein otherwise it would only be destructive of the principle of advancing the cause of justice. In such matters, the court should not bind itself by the shackles of technicalities."
16. It was held in Jayalakshmi Coelho v. Oswald Joseph Coelho, (2001) 4 SCC 181;-
"13, So far legal position is concerned, there would hardly be any doubt about the proposition that in (Downloaded on 05/06/2021 at 08:25:34 PM) (6 of 8) [CRLMP-2915/2017] terms of Section 152, C.P.C., any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the Court. The principle behind the provision is that no party should suffer due to mistake of the Court and whatever is intended by the Court while passing the order or decree must be properly reflected therein, otherwise it would only be destructive to the principle of advancing the cause of justice. A reference to the following cases on the point may be made. The basis of the provision under Section 152, C.P.C. is found on the maxim "Actus Curiae Neminem Gravabit" i.e. an act of Court shall prejudice no man (Jenk Cent- 118) as observed in a case reported in AIR 1981 Gauhati 41, The Assam Tea Corporation Ltd. v. Narayan Singh. Hence, an unintentional mistake of the Court which may prejudice cause of any party must be rectified. In another case reported in AIR 1962 SC 633, Janakirama Iyer v. P. M. Nilakanta Iyer it was found that by mistake words."net profit" was written in the decree in place of "mesne profit". This mistake was found to be clear by looking to the earlier part of the judgment. The mistake was held to be inadvertent. In Bhikhi Lal v. Tribeni, AIR 1965 SC 1935, it was held that a decree which was in conformity with the judgment was not liable to be corrected. In another case reported in AIR 1966 SC 1047, Master Construction Co. (P) Ltd. v. State of Orissa, it has been observed that arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court liable to be corrected. To illustrate the point, it has been indicated as an example that in a case where the order may contain something which is not mentioned in the decree would be a case of unintentional omission or mistake. Such omissions are attributable to the Court who may say something or omit to say something which it did not inted to say or omit. No new arguments or re- arguments on merits are required for such rectification of mistake. In a case reported in (1999) 3 SCC 500 : (1999 AIR SCW 663 :
AIR 1999 SC 1031), Dwarakadas v. State of M.P. this Court has held that the correction in the order or decree should be of the mistake or omission which is accidental and not intentional without going into the merits of the case. It is further observed that the provisions cannot be invoked to modify, alter or add to the terms of the original decree so as to in effect pass an effective judicial order after the judgment in the case. The trial Court had not granted the interest pendente lite though such a prayer was made in the (Downloaded on 05/06/2021 at 08:25:34 PM) (7 of 8) [CRLMP-2915/2017] plaint but on an application moved under Section 152, CPC the interest pendente lite was awarded by correcting the judgment and the decree on the ground that non-awarding of the interest pendente lite was an accidental omission. It was held that the High Court was right in setting aside the order. Liberal use of the provisions under Section 152, CPC by the Courts beyond its scope has been deprecated. While taking the above view this Court had approved the judgment of the Madras High Court in Thirugnanavalli Ammal v. P. Venugopala Pillai, AIR 1940 Madras 29 and relied on Maharaj Puttu Lal v. Sripal Singh, reported in AIR 1937 Oudh 191: ILR 12 Lucknow 759. Similar view is found to have been taken by this Court in a case reported in (1996) 11 SCC 528, State of Bihar v. Nilmani Sahu, where the Court in the guise of arithmetical mistake on reconsideration of the matter came to a fresh conclusion as to the number of trees and the valuations thereof in the matter which had already been finally decided. Similarly in the case of Bai Shakriben (dead) by Natwar Melsingh v. Special Land Acquisition Officer, reported in (1996) 4 SCC 533 : (1996 AIR SCW 2645 : AIR 1996 SC 3323) this Court found omission of award of additional amount under Section 23 (1-A), enhanced interest under Section 28 and solatium etc. could not be treated as clerical or arithmetical error in the order. The application for amendment of the decree in awarding of the amount as indicated above was held to be bad in law."
17. It was held in State of Punjab v. Darshan Singh, (2004) 1 SCC 328:-
"13. The basis of the provision under Section 152 of the Code is founded on the maxim "actus curiae neminem gravabit" i.e. an act of court shall prejudice no man. The maxim "is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law", said Cresswell, J. in Freeman v. Tranah, 12 CB 406 (ER p. 967). An unintentional mistake of the court which may prejudice the cause of any party must and alone could be rectified. In Master Construction Co. (P) Ltd. v. State of Orissa, AIR 1966 SC 1047 it was observed that the arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the court, liable to be corrected. To illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the court which may say something or omit to say something which it did not (Downloaded on 05/06/2021 at 08:25:34 PM) (8 of 8) [CRLMP-2915/2017] intend to say or omit. No new arguments or re- arguments on merits can be entertained to facilitate such rectification of mistakes. The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case."
18. Dealing with the issue of implied powers, it was observed in Savitri v. Govind Singh Rawat, (1985) 4 SCC 337:-
"6... Every court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim "ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest"
(Where anything is conceded, there is conceded also anything without which the thing itself cannot exist). [Vide Earl Jowitt's Dictionary of English Law, 1959 Edn., p. 1797.] Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a:
construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration...."
19. Accordingly, we answer the question in the affirmative and hold that the trial Court was justified in allowing the correction. Contrary view taken by learned Single Judges in M/s Kumar Rubber Industries and V.K. Gupta cannot be upheld and will stand overruled."
In view of the settled legal position, which has been stated by Division Bench of Punjab and Haryana High Court upon a reference made, the order passed by the revisional court below is upheld.
In view of above, no interference is warranted and the present petition being devoid of merits is dismissed.
(KANWALJIT SINGH AHLUWALIA),J Govind/ (Downloaded on 05/06/2021 at 08:25:34 PM) Powered by TCPDF (www.tcpdf.org)